Google and Mississippi meet in court over secret MPAA lobbying

A devastating hack on Sony late last year exposed embarrassing details about Hollywood’s darker side, including a secret campaign by the movie industry to bring about new copyright controls. Dubbed “Project Goliath,” the plan relied in part on the Motion Picture Association of America colluding with state officials in order to investigate and harass Google.

Now, in a Friday hearing that promises to be equal parts constitutional law and political theater, Google will try and persuade a federal judge in Jackson, Mississippi, to rein in the state’s controversial Attorney General, Jim Hood.

“For nearly two years, Attorney General Hood has pressured Google to remove and censor content that he and Hollywood don’t like — even though he lacks legal authority to do so,” said Google’s general counsel, Kent Walker, in a statement. “Attorney General Hood’s extraordinary 79-page subpoena is an unjustified assault on free speech and we’re asking the federal court to set it aside. We regret having to take this matter to court, and we are doing so only as a last resort.”

Hood’s office did not immediately respond to a request for comment over an affair that not only showed him to be acting as an agent of the movie industry, but that exemplifies a larger pay-to-play phenomenon in which Democratic attorneys general exercise their official powers at the behest of private industry and law firms — and receive a cut of the proceeds.

In the case of Hood, the current details came to light after the Verge discovered documents from the Sony hack that showed how lawyers from the movie industry had drafted documents that the Attorney General had sent to [company]Google[/company] as part of an investigation.

That investigation is ostensibly about protecting Mississippi consumers from online threats like drugs and pornography, but appears instead to be a stalking horse for the movie industry. Internet activists fear the industry’s goal is to use state AGs in a back-door attempt to implement the substance of SOPA, an unpopular anti-piracy bill that collapsed in early 2012.

As for Hood, the Google investigation may be no more than an attempt to use the investigative powers of his office to wring out some money for the state of Mississippi, and for his own campaign coffers.

“Hood’s crusade against Google looks and smells like an effort to simply squeeze the billion-dollar to provide some settlement money,” wrote the Natchez-Democrat, a community news site, in a January editorial.

Such criticism, however, appears to be doing little to deter Hood, who is framing his actions as a populist effort to defend the people of Mississippi, and last month filed a motion to dismiss Google’s complaint that he had overreached with his MPAA-backed subpoena.

Friday’s hearing, which will address both Hood’s dismissal motion and a request by Google for a temporary restraining order against him, will put the two sides’ theories to the test.

According to a brief filed by Google, the state of Mississippi is usurping federal statutes that shield internet companies from copyright and indecent acts carried out by their users. Google also argues that Hood is treading on its constitutional rights with “specific threats of prosecution, and there is no dispute that the First Amendment forbids threats of prosecution based on protected speech.”

Hood’s lawyers, meanwhile, will attempt to tell the judge that its subpoena falls within Mississippi’s investigative powers, and that Google can always go to state court if it fears its rights are being abused.

A ruling on the case is likely to come in coming weeks. I’ll update if there is major news out of today’s hearing. In the meantime, if you want to get a flavor of the legal issues at play, here is a copy of Google’s brief with some of the relevant parts underlined:

Google Reply Brief

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Google fight over Mosley orgy shows censorship creep in Europe

A rich, powerful man won a series of court victories in France and Germany that arguably helped pave the way for Europe’s controversial “right to be forgotten”, which has helped people erase history by scrubbing search engines. Now, that man is pushing a U.K. court to go a step further — and, unfortunately, it sounds like the court will agree.

As the BBC explains, Max Mosley was in the High Court this week demanding that Google be held accountable for images that show him romping with five German-speaking prostitutes in a prolonged S&M orgy in a posh London apartment.

Mosley, who is the former head of F1 racing and the son of a prominent U.K. fascist, already has the right to ask Google to remove specific search results that link to the pictures or videos in question. What he is seeking now is for the court to designate Google as a publisher in its own right, which would make it responsible for finding and deleting any other links that might appear in the future.

The distinction is crucial because a court ruling in Mosley’s favor would transform Google and other search engines from a passive directory into an active censor. It is the difference between asking a newsstand to remove a certain magazine that has an offensive image, versus making the newsstand responsible for ensuring the image never appears in any other publication it sells in the future.

To support his position, Mosley’s lawyers are pointing to a court ruling against the defunct tabloid News of the World, which was forced to pay Mosley £60,000 for defamation and violating his privacy. They say Google is similarly liable for violating a U.K. law known as the Data Protection Act.

Google’s lawyer, meanwhile, is asking the court to throw out the case on two grounds: that Mosley no longer has a privacy right in the images since they have been so widely disseminated, and because the search engine is not a publisher in the first place. As the FT reports:

“Max Mosley remains in the public eye as a campaigner for privacy rights and this has never been forgotten or receded into the past,” [the lawyer] told the court, adding that in legal terms Google was not a publisher of the images.

While the case would be quickly thrown out in a North American court, other news reports suggest Mosley’s argument gained traction with the judge. The Mirror, for instance, quotes the judge in the case as saying “damages may simply not be available” to Mosley, but that an injunction is “much less problematic.”

This distinction will be cold comfort for Google since Mosley, if the judge issues an injunction, will be in a position to seek damages or a contempt of court charge if Google fails to comply with an order not to display or link to the images.

In the bigger picture, Mosley’s latest gambit appears likely to cause Europe’s creeping cloak of internet censorship to expand further. And a U.K. ruling in his favor will also bring about a further fracturing of the internet as a whole, as North Americans see one version of the web — including the Mosley video — while Europeans see a different one punched full of holes.